International human rights law186and U.S. constitutional guarantees187
protect persons against coercive interrogations. Within these limitations, law
enforcement officials can use a wide variety of questioning methods. Our
research suggests thatalmost all material witnesses have experienced
aggressive interrogations more commonly faced by criminal suspects. Even where
the interrogation methods themselves have not violated human rights and
constitutional standards, the absence of legal safeguards normally available to
criminal suspects has placed the material witnesses in situations equivalent to
unlawful coercion.

In many cases, the trauma of forceful, prolonged questioning
has been heightened by the absence of counsel and the witnesses lack of
information as to why they were arrested or what they were accused of doing.
The governments willingness to badger and grill the witnesses has reflected
its view they were not mere witnesses, but men with suspicious ties to alleged
terrorists, maybe conspirators or terrorists themselves.

In one case, the interrogation was so fierce and threatening
it led to a false confession. As described above, the government arrested
Abdallah Higazy as a witness in December 2001after agents were informed
that hotel staff had found an air-to-land transceiver (which turned out to have
been planted in his room by a security guard) in the hotel room where he was
staying during the time of the September 11 attacks, near the World Trade
Center. The government alleged that he was connected to the September 11
attacks and could have been communicating with the hijackers. Upon his arrest,
and later in court, Higazy denied the radio was his or that he was involved in
the attacks. Higazy told HRW/ACLU: It was horrible, horrible. I always have
the feeling of being accused of something I didnt do. I was crying each and
every day five to seven times.188

In court proceedings, the government was, according to his
lawyer, hellbent to prove that the transceiver belonged to Higazy.189
Higazy immediately insisted on taking a polygraph because I wanted to show I
was telling the truth.190
His lawyer, Robert Dunn, cautioned him not to take the polygraph, but Higazy,
who had by then spent days in solitary confinement, desperately wanted to prove
his innocence and get out of jail.191

On December 27, 2001, federal agents took Higazy to an
office in Manhattan purportedly for his polygraph exam. FBI agents would not
let Dunn in the polygraph room as a matter of routine procedure, but they
allowed him to sit outside. The polygraph exam lasted for a few minutes but
then turned into a full-blown interrogation that lasted more than four hours
without a break.192
Before the test, FBI agent Michael Templeton, who was conducting the polygraph,
told Higazy: We will make the Egyptian authorities give your family hell if
you dont cooperate. During the polygraph, Agent Templeton asked Higazy about
his knowledge of the September 11 attacks. After each of Higazys denials, the
agent told Higazy: Tell me the truth. When the agent started telling him
about what the radio device could do and how it was connected to the attacks,
Higazy became nervous and almost fainted. He asked to stop the polygraph test
and take the cables off him. The agent did so and told him, This never
happened to anyone who said the truth.193

Higazy told HRW/ACLU that at this point he thought he was
in trouble and
had lost the only chance to prove I was innocent. He said he insisted, Its
not my device, I dont know who put it there. He said Agent Templeton told
him, We can show ties between you and September 11. You are a terrorist.194
Higazy said the agent also again threatened his family: He said it like this:
If you do not cooperate, the FBI will make your brother upstate live [under
constant] scrutiny. And we'll make sure Egyptian security gives your family
hell. That's exactly how he said it.195

During the interrogation, Higazy became so nervous that he
started to hyperventilate, causing the agent to seek medical attention. When
Agent Templeton came out of the room to get an agent trained as an Emergency
Medical Technician, he did not tell Dunn what transpired. After four hours,
Higazy confessed to owning the transceiver: All I wanted to do is to keep away
from September 11 and to keep my family away from them. After obtaining the
confession, Agent Templeton then came out and told Dunn that Higazy had
confessed. His lawyer, who was shocked at this development, recounted:

Apparently Higazy was so stressed out by the questions
he couldnt breathe He had his head between his legs. After four hours, it
finally finished. The agent came out and said we dont have a polygraph, but we
have a confession and he wants you in. I asked him what happened. He was not
coherent, he couldnt even hear me. He was ashen and his eyes were bugged out.
He kept saying he couldnt remember what he said during the exam, but I know
nothing about the radio. He said that they threatened his family. The agent
told him that hes a terrorist, I believe that you are a terrorist.196

The government subsequently charged Higazy with perjury for
his earlier denials of owning the transceiver.

In January 2002, another hotel guest went to the hotel to
claim his belongings and reported his radio-air transceiver stolen. After the
guest claimed as his own the transceiver attributed to Higazy, the government
dismissed the material witness warrant and criminal charges against Higazy.
Concerned about how the government secured a false confession from Higazy, a
federal court has ordered an investigation into the Justice Departments
conduct in his case.

Other material witnesses reported that FBI agents threatened
them with extended jail time for unnamed criminal charges. Agents, for example,
told Mohdar Abdullah, Osama Awadallah, and Mujahid Menepta that each would be
locked up for a long time. Abdullah described his first FBI interrogation after
his arrest: [The agent] told me, Youre going to be in jail for about five
years. Youre going to New York and will be in jail for five years. I was
scared and angry. What the hell did I do?197 Threats of harsh criminal charges and
lengthy prison sentences were consistent with the governments belief that many
of the witnesses were in fact suspects.

In another case, various federal officials threatened Osama
Awadallah after his arrest as a material witness in the September 11
investigation. The district court reviewing his case described the situation:

After Agent Falcon finished administering the
polygraph, he encouraged Awadallah to tell the truth about his supposed
connection to the September 11th attacks by threatening to send him to prison for
five years for lying. Agents Teixeira and Godshall then accused him of being
one of the September 11th terrorists and told him to sit down and not move. The
agents threatened to fly him to New York and detain him for one year in order
to find out more about him.198

[186]International
human rights law prohibits law enforcement officials from conducting coercive
interrogations. The Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT), G.A. res. 39/46,
annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered
into force June 26, 1987 (ratified by the U.S. in 1994), available online at: http://www1.umn.edu/humanrts/instree/h2catoc.htm,
accessed on June 17, 2005. CAT prohibits torture and other mistreatment under
all circumstances, and includes any act by
which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person
information or a confession. Ibid., article 1. Torture and other
cruel, inhuman or degrading treatment are also prohibited under article 7 of
the ICCPR. Principle 21 of the U.N. Body of Principles states: "No detained
person while being interrogated shall be subject to violence, threats or
methods of interrogation which impair his capacity of decision or his
judgment."

[187]The U.S.
Supreme Court has repeatedly upheld the rights of individuals not to be
subjected to coercive interrogations. In Haley v. Ohio, Justice
Frankfurter stated in a concurring opinion: An impressive series of cases in
this and other courts admonishes of the temptations to abuse of police
endeavors to secure confessions from suspects, through protracted questioning,
carried on in secrecy, with the inevitable disquietude and fears police
interrogations naturally engender in individuals questioned while held
incommunicado, without the aid of counsel and unprotected by the safeguards of
a judicial inquiry. Haley v. Ohio, 332 U.S. 596, 605 (1948)
(Frankfurter, J. concurring). In Stone v. Powell, Justice Burger opined
that: "A confession produced after intimidating or coercive interrogation
is inherently dubious. If a suspect's will has been overborne, a cloud hangs
over his custodial admissions; the exclusion of such statements is based
essentially on their lack of reliability." Stone v. Powell. 428 U.S. 465, 496 (Burger, J. concurring).

[190]Interview
with Abdallah Higazy;Human Rights Watch
telephone interview with Robert Dunn, attorney for Abdallah Higazy, New York,
New York, July 23, 2002 (Interview with Robert Dunn, July 23, 2002).